Katie Carruth v. Littleton, Town of - Office of the Town Clerk (SPR 20211502)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 22, 2020 SPR21/1502 Ivria Glass Fried, Esq. Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Fried: I have received your petition on behalf of the Town of Littleton (Town) seeking a waiver of statutory limits on fees that may be assessed in responding to a public records request. G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of their petition to the requestor. G. L. c. 66, § 10(d)(iv). On June 14, 2021, Katie Carruth requested all emails between an indentified Select Board member and any other member(s) of the Select Board. Subsequent to the opening of this petition, Ms. Carruth sent a response to this office on June 17, 2021 that addresses the Town’s petition. Petitions to assess fees The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d)(iv). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality's petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that the request is not for a commercial purpose. The second One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Ivria Glass Fried, Esq. SPR21/1502 Page 2 June 22, 2021 prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06( 4)(g). Current Petition In its June 15, 2021 petition, the Town requests “a waiver of statutory limits on fees for responding to a public records request, dated June 14, 2021.” The Town “request[s] authorization to charge a rate higher than $25 per hour….for actual time spent by the Town to segregate and redact the requested records.” The Town indicates, “[t]here are approximately 54 potentially responsive email chains.” The Town states it “must review the requested records prior to release. It is possible that the records may contain protected information. Specifically, the deliberative process exemption (exemption (d), M.G.L. c.4, §7(26)(d)) may apply given that the records may include communications among Select Board members relating to policy positions being developed. To avoid the release of materials that could taint the deliberative process if prematurely disclosed, the Town must review the records.”

Ivria Glass Fried, Esq. SPR21/1502 Page 3 June 22, 2021 The Town indicates “a number of unanticipated exemptions may apply to these emails, since Select Board members are responsible for a wide variety of Town matters. For example, they may consult on matters relating to personnel information (exemptions (b) and (c), M.G.L. c.4, §§7(26)(b), (c)) or a variety of other statutory exemptions (exemption (a), M.G.L. c.4, §7(26)(a)).” The Town further indicates “Diane Crory, the Town Clerk, is the lowest paid employee capable of performing this review. Ms. Crory is paid $42.06 per hour. She has the authority to review these records, which may include confidential privacy information.” The Town notes “…it is not uncommon for Town staff…to contact Town Counsel to seek an opinion about a particular record…[t]he School Department will incur an expense associated with Town Counsel’s review. An associate in my office charges $185 per hour. The School Department is not seeking to recover any costs associated with Town Counsel’s review of this request, if necessary.” The Town contends “the increase in the fee from $25 per hour to $42.06 per hour is not only modest but is far less than the Town of Littleton will actually incur in responding to the request. The fee is also not designed to limit, deter, or prevent access to the records, as demonstrated by the Town’s willingness to not charge for any Town Counsel time. It is only fair to the citizens of Littleton that the Town be allowed to recoup at least some of its costs in responding to this request.” I find the Town has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). However, the fee shall not be more than $25 per hour. Conclusion In light of the Town’s petition, I find the Town has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Town may assess a fee not more than $25 per hour for segregation and redaction. This office encourages Ms. Carruth and the Town to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any fee estimate from the Town must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii).

Ivria Glass Fried, Esq. SPR21/1502 Page 4 June 22, 2021 Please note, the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Katie Carruth